To date, there are few bright line rules to guide employers in determining how much leave is reasonable under the Americans with Disabilities Act (ADA). Further, employers sometimes mistakenly assume that if an employee has exhausted Family Medical Leave Act (FMLA) leave, then the employee is not entitled to additional leave under the ADA. However, even if the employee’s leave is no longer covered by the FMLA (or was not covered in the first place), the employee may still have rights for additional leave. The conundrum for employers is to properly manage employee leave, while balancing attendance and productivity expectations. While it is difficult to derive simple rules regarding leave as an accommodation, one theme resounds—an individualized assessment in each case is critical. Read on for recommendations and general principles for employers to best manage an employee’s request for leave as a reasonable accommodation.
Leave as a Reasonable Accommodation
An employer must provide leave to an employee who is disabled under the ADA if the leave constitutes a reasonable accommodation. Leave will likely constitute a reasonable accommodation if it is supported by medical documentation that the leave is necessary to enable an employee to perform the essential functions of her job and the leave is for a limited, finite, period, unless the employer can show that the leave imposes an undue hardship on the employer. Although leave has been explicitly identified as a reasonable accommodation under the ADA in nearly every Circuit, courts generally agree that there is no duty to accommodate an employee with an indefinite or “open-ended” leave of absence.
Comparing the ADA and FMLA, the Equal Employment Opportunity Commission (EEOC) has stated that a disabled employee is entitled, as a reasonable accommodation under the ADA, to more leave than the 12 weeks of FMLA leave if the additional leave would not impose an undue hardship on the employer. Because neither the EEOC nor the ADA set forth a specific or maximum amount of leave as a reasonable accommodation, the employer should determine the length of leave on a case-by-case basis. What may be a reasonable amount of leave in one situation may not be reasonable in another situation.
If the length of leave requested is an undue hardship to the employer, it will not be required to grant the leave; however, the burden is on the employer to show that the length of leave requested would cause an undue hardship. An undue hardship is an action requiring “significant difficulty or expense,” when considering various factors, such as the nature and cost of the accommodation, the employer’s financial resources, the size of its workforce, and the impact of the accommodation on its operations. Whether leave would constitute an undue hardship is a fact specific inquiry. In cases where the employer deems that leave would cause an undue hardship, the employer should still engage in the interactive process to determine whether there are other less burdensome accommodations, such as shorter leave or reassignment to a vacant position for which the employee is qualified.
Medical Information Supporting a Request for Leave
An employer may require the employee to submit medical documentation to support the employee’s request for leave. Specifically, an employer may require documentation to determine the existence of a disability and the necessity for an accommodation. An employer also may require medical information regarding the expected duration of the employee’s impairment, not just the expected duration of the leave. Where an employee fails to supply requested information on the expected duration of her impairment, courts have held the request as being one for indefinite leave, and therefore not a reasonable accommodation. Further, if the employee fails to provide appropriate documentation altogether, then the employer is not required to provide a reasonable accommodation. Courts generally have held that an employee’s failure to submit requested medical documentation to support her accommodation request is a failure of the employee to engage in the interactive process, which may relieve the employer of the duty to offer a reasonable accommodation to the employee.
General Principles in Evaluating Reasonableness
A few general principles may be gleaned from the recent decisions in which courts have addressed whether an employee’s request for leave is a reasonable accommodation under the ADA:
An employee’s request for indefinite leave is not a reasonable accommodation.
An employee’s request for a determinate leave, which provides the expected duration of the impairment, may be a reasonable accommodation absent an undue hardship.
Leave that has no reasonable prospect of enabling the employee to work in the foreseeable future is not a reasonable accommodation.
An employee’s own statements that she expects to be able to return to work within a certain period of time are insufficient to substantiate leave, especially if the statements conflict with medical documentation (i.e., physician states date of return is unknown but employee states that she expects to return to work within 3 months).
Repeated extensions of leave requests, including successive requests for short periods of leave, can be tantamount to a request for indefinite leave, and therefore, an unreasonable accommodation.
Employers should consider the following course of action with regard to any employee who requests leave or extended leave as an accommodation for a medical condition:
Conduct an individualized assessment. Employers should ensure that they conduct an individualized assessment of the facts when examining an employee’s request for leave as a reasonable accommodation.
Engage the employee in the ADA’s interactive process. Employers should maintain clear lines of communication with employees on leave who request accommodations. Communication should address: 1) the employee’s ability to perform her job; 2) whether the employee likely will be able to return to work and when; 3) whether there are other accommodations to enable the employee to return to work; and 4) whether the employee has provided any supporting medical documentation.
Utilize an application for extended leave which includes a request for supporting medical documentation. An employer may deny leave if the employee fails to present requested medical documentation that the employee can return to work in the foreseeable future. If the available medical evidence indicates that the employee cannot currently perform the job but will be able to perform by some specified date in the near future, the employer should place or continue the employee on extended leave, absent an undue hardship determination.
Document the undue hardship analysis. If applicable, analyze and document how the requested leave of absence poses an undue hardship to the business (i.e., significant losses in productivity; deferred projects; increased stress on overburdened co-workers).
Make the process transparent. Implement a comprehensive policy that outlines the reasonable accommodation process and include it in the employee handbook.
As with all ADA cases, whether leave is a reasonable accommodation in a particular case depends on the factual situation and how the leave will affect both the employer and the employee.
Adapted from: Employee Medical Leave: The Reasonableness Conundrum (Joseph J. Centeno & Tiffani L. McDonough), The Legal Intelligencer Labor & Employment Supplement (June 12, 2012).